Efforts to restrict recordings of animal abuse could impede newsgathering

A recent spate of nationwide legislative measures designed to curb undercover recording at farms and other agricultural facilities may potentially restrict reporters’ ability to gather and publish important information about the food industry.

Some of the measures would directly prohibit journalists from photographing or recording farm animals and other items and activities involved in food production in a manner not likely to pass constitutional scrutiny.

Others, however, seek to cut off the dissemination of this information at its source, by criminalizing the actions of whistleblowers.

Although the laws and proposed laws differ in the types of activities they criminalize, all are at the center of a legal controversy that pits agricultural interests against those of journalists, activists and employees. Supporters of the measures claim they are necessary to protect the nation’s food supply, while opponents argue that these so-called “ag-gag” laws restrict the ability to document and disseminate information about animal abuse and unsanitary food-handling practices.

The history of the legislation

In 1990, Kansas was the first state to enact a law that criminalizes undercover photographs or recordings of farms and other animal facilities. Montana and North Dakota passed similar laws the following year.

The issue resurfaced nearly 20 years later when a series of undercover investigations revealed animal cruelty and disease-promoting conditions at farms and slaughterhouses across the nation. In some cases, these investigations formed the basis of criminal prosecutions or prompted food-safety awareness and reform, according to the American Society for the Prevention of Cruelty to Animals.

In February, for example, five workers at a Butterball turkey farm in North Carolina were arrested for felony and misdemeanor animal cruelty charges after an undercover video taken by the organization Mercy For Animals showed turkeys being kicked, dragged and thrown around the farm.

And a video surreptitiously recorded four years ago by the Humane Society that depicted uninspected cows entering the United States food supply spurred a nationwide concern about mad-cow disease. Three weeks after the January 2008 release of the video, the U.S. Department of Agriculture ordered the largest meat recall in the agency’s history: 143 million pounds of beef.

Last year, the animal-agriculture industry responded by introducing bills in various states that would criminalize the recording, possession or distribution of photographs and video and audio recordings taken at or of a farm, industrial agricultural operation, animal facility or, in the case of one state, places where crops are maintained. Some of these measures would prohibit photos or videos of these facilities even if taken from public places. Other bills would bar potential private undercover investigators from obtaining employment at such facilities, while others would require employees to turn over recordings of animal abuse or neglect to law-enforcement officials. (See box on page 6 for more information about the proposed laws.)

None of the bills proposed in 2011 passed, but Iowa and Utah enacted such laws in recent months.

Effects on traditional newsgathering

Of particular concern to journalists are bills such as those in Minnesota and Missouri. Under those measures, taking an unauthorized photograph or recording while at an animal or agricultural-production facility or crop operation of an image or sound occurring there is a criminal offense. Because the proposed laws define the relevant facilities in a manner that includes many locations generally open to the public, including a livestock market or exhibition and nursery or garden, these bills would presumably infringe the public’s right to photograph or record something observed in a publicly accessible place.

These measures’ criminalization of the possession or distribution of an unauthorized photograph or recording also is likely unconstitutional, at least as applied to journalists, because of the 2001 landmark U.S. Supreme Court opinion Bartnicki v. Vopper. In that case, the high court ruled that the media could not be held liable for publishing information of public concern that was obtained by a source in violation of a wiretapping law but where the media were blameless in the illegal interception.

A bill in New York also raises serious constitutional issues. Like Minnesota’s and Missouri’s, it criminalizes taking, without the owner’s consent, a photograph or video or audio recording of a farm animal or any of a number of locations where “farm animals are housed, cared for, grazed or bred,” including “any building, structure, vehicle, pasture, paddock, pond, impoundment area, land or property.” Unlike the other bills, however, New York’s does not require the photographer or videographer to be on the property. For example: a photograph taken from a public road of a farm animal grazing in an open field would expose the journalist to up to a year in prison or a $1,000 fine.

“This bill is just way over the top. As it reads now, it would criminalize taking photographs from the street,” where the First Amendment right to gather news is strongest, said Diane Kennedy, president of the New York News Publishers Association, an Albany-based organization involved in lobbying efforts at the state legislature.

But Kennedy said she has been assured by legislators that the bill, which was referred to the state Senate Agriculture Committee in January, “is not going anywhere” and will not be passed this legislative session. A similar bill failed last year in New York, and a 2012 Florida bill that originally prohibited photographs or videos taken from a public place was killed earlier this year.

It is because of these constitutional concerns that the enacted laws in Iowa and Utah do not criminalize such traditional newsgathering activities, said Amanda Hitt, director of the Food Integrity Campaign for the Washington, D.C.-based Government Accountability Project, a nonprofit organization that protects whistleblowers. Rather, the measures criminalize the falsification of employment applications, thereby avoiding the constitutional challenge while still restricting the flow of information to reporters by “creating a chilling effect for whistleblowers who perceive wrongdoing and want to bring it to the attention” of others, Hitt said.

Specifically, the laws in both states prohibit people from obtaining access to agricultural production facilities by false pretenses. The Iowa law also criminalizes lying on an employment application in order to gain access to such a facility with the intent to commit an unauthorized act there, knowing that the activity is prohibited. And the Utah law criminalizes applying for employment at an agricultural operation with the intent to make an undercover recording there, accepting employment with the knowledge that such recording activity is prohibited and doing so while employed at and present on the property.

Such restrictions are unlikely to affect traditional newsgathering, mainly because of a seminal case addressing the news media’s use of fraudulent employment applications to gain undercover access to a grocery chain’s meat department. (See “The Food Lion case” on page 8 for more information about this case.)

Effects on whistleblowing

Although the Iowa and Utah laws may not impose direct restrictions on newsgathering, their criminalization of whistleblowing “is a sort of backdoor way of going after journalists,” said Jesselyn Radack, national security and human rights director for the Government Accountability Project.

“Whistleblowing is a huge part of reporting and journalism,” said Radack, who, as a former U.S. Department of Justice legal ethics adviser in June 2002, revealed misconduct in the case of the so-called “American Taliban,” John Walker Lindh, the nation’s first terrorism prosecution after the Sept. 11 attacks. Radack sent e-mail messages to a Newsweek reporter indicating that the FBI committed an ethics violation by interrogating Lindh without an attorney present, and the Justice Department attempted to suppress that information.

“The biggest stories that have come about in the last 50 years have been broken by journalists relying on whistleblowers, from Daniel Ellsberg and the Pentagon Papers all the way to Thomas Drake and his concerns about fraud at the National Security Agency,” she said.

Eric Lichtblau

And investigative reporters who regularly rely on such whistleblowers said they are definitely feeling the chill, especially in the area of national security. The New York Times’ Washington, D.C.-based reporter Eric Lichtblau said the recent surge in criminal investigations into leaks of government information, and in particular, the use of the Espionage Act as the vehicle for prosecution, have greatly impeded national security reporters’ ability to gather confidential information from sources.

“Federal officials who may have important information to share with the public are afraid to speak with reporters for fear of getting caught up in a leak investigation, losing their jobs, and incurring tens of thousands of dollars in legal fees,” Lichtblau said in an e-mail recounting remarks he made at a recent panel discussion on whistleblowing and national security and how they relate to and affect the First Amendment guarantee of a free press.

And it’s not only investigative journalism that suffers, said Lichtblau, pointing to the Thomas Drake prosecution as an example of how government officials, intent on going after those who speak up, often neglect to investigate the possible crimes that underlie the leaked information. Rather than examining allegations of warrantless wiretapping itself, for example, government investigators “turn[ed] their sights on” Drake and his associates at the NSA as sources of information Lichtblau and fellow Times reporter James Risen relied on for their Pulitzer Prize-winning series on secret domestic eavesdropping. The government wrongfully suspected Drake and his associates because they previously had gone to the Justice Department’s Office of the Inspector General with unrelated claims of contracting abuses within the agency, Lichtblau said.

“The use of the Espionage Act has been particularly pernicious because it sends the clear message that sources who may deal with the media, even those who never disclose classified information, are traitors who are aiding the enemy. This is a twisted reading of the kind of press freedom and aggressive reporting that the First Amendment was designed to protect,” he said in his e-mail.

Effects on employees

While “ag-gag” laws pose serious threats to journalists and whistleblowers on whom they rely as important sources, the dangers these measures pose for employees of animal facilities are equally concerning, said Dan Mathews, senior vice president of People for the Ethical Treatment of Animals.

Consider the following scenario: an employee of Moyer Packing Co., a slaughterhouse in northern Pennsylvania, contacted PETA in 1991 to report that some cattle in the meatpacking facility were improperly stunned and thus had their throats slit, hooves and lips removed, and hides taken off while still conscious. As a result, this employee was often endangered when he approached the animals to remove their hooves because - still twitching as they moved through the plant while suspended by a hind leg on a conveyor belt - the cattle would use their other legs to kick the employee in his face, Mathews said.

The employee’s complaints to the on-site Agriculture Department inspector were ignored, Mathews said, so PETA sent an investigator into the facility to surreptitiously record the meat-processing procedures. The recordings served as the basis of complaints the animal-rights group filed with federal and state agencies.

“This is the exact sort of activity that will be outlawed” under the newly enacted ag-gag laws, Mathews said. Low-wage employees “are not the sort of people to rock the boat with their employers, so this is going to make people like this man very hesitant to come forward, even when their safety is at stake.”

Proponents of the legislation point out that it discourages activists and others from gaining access to animal facilities under false pretenses but does not prohibit legitimate employees from recording and reporting incidents of animal abuse or unsafe food-handling procedures.

“In a post 9/11 world, transparency is important for farmers and consumers alike. Responsible farmers take good care of their land and livestock and want to employ honest, hardworking people that have the welfare of their livestock as their top priority,” Craig Hill, a livestock farmer and president of the Iowa Farm Bureau Federation, said in a written statement on behalf of the organization supporting the Iowa Legislature’s passage of its bill. “With that transparency comes trust that everyone working with our livestock also believes in the compassionate care of our animals.”

But Hitt of the Government Accountability Project said the issue is not that simple. Consider, for example, a low-wage factory employee whose only intent in applying for work there was to earn a living, but who nonetheless discovers inhumane animal-handling situations that the employee feels compelled to record and report. How, Hitt asked hypothetically, is that employee ever going to be able to prove that he or she did not obtain employment with that intent? Or what about an immigrant factory worker who likewise wants to blow the whistle on wrongdoing but who, by the very nature of his or her citizenship status, likely obtained employment under false pretenses, she added?

A feasible solution, Hitt said, would be the addition to these state laws of a safe-harbor provision for whistleblowers, much like the protection granted last year with the passage of the federal FDA Food Safety Modernization Act. Under the law, which governs food businesses regulated by the U.S. Food and Drug Administration, workers in these industries are protected from retaliation for reporting FDA violations or refusing to engage in activities that could harm a consumer.

However, this law does not generally apply to workers in food businesses regulated by the Agriculture Department, including the meatpacking and poultry industries, Hitt said. But she and other food-quality advocates are lobbying for passage of the Foodborne Illness Reduction Act, which would amend the federal law that does govern these industries to include whistleblowing protection, Hitt said.

Protection for these whistleblowers “would really disrupt the industry - an industry that thrives on privacy and an ability to work in the dark because that business is not a pretty thing, and rotten things happen in that seclusion,” she said. “This could not be more crucial; this is what people eat.”